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2006-23776 ~ DOC # 2006--0023776 I /llillll/lllllll 1111111111111111111I111111111111111 111111111111/11111 f1 Recording Requested By: lOf \ ~ When Recorded Mail To: City Clerk City of Encinitas 505 S. Vulcan Avenue Encinitas, CA 92024 ) ) ) ) ) ) ) ) ) ) ) JAN 11, 2006 3:57 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J SMITH. COUNT'( RECORDER FEES: 35.00 PAGES 10 111111I111I1111111111111111I11111111111I1111111I111I1111111I111111 \)~ b 1'",,., 1" Assessor's Parcel No. 260-620-49 !tJ AMENDED COVENANT REGARDING REAL PROPERTY OFF-SITE EASEMENT TO COMPLY WITH ZONING SETBACKS Building Permit Nos. 03-0132, 03-2006, 04-0329, 04-0470 This Amended Covenant is entered into among Mark D. Bobo and Kristy R. Bobo (hereinafter "OWNERS"), Stephen R. Freyling and Heidi A. Keller (hereinafter "BENEFICIARIES"), and the City of Encinitas (hereinafter "CITY"), and amends and supercedes the Covenant Regarding Real Property Limited Use of Off-Site Easement to Comply with Zoning Setbacks entered into between OWNERS and CITY on December 28, 2004, and recorded in the Office of the San Diego County Recorder on o,cember 28, 2004, as Document No. 2004-1219850, which provided, in part, that OWNERS would not use the easement, more particularly described herein, for ingress and egress for OWNERS' property, more particularly described herein, "other than such use as is necessary for the maintenance and construction of improvements in the rear yard area." A. OWNERS are the owners of real property which is commonly known as 1364 Summit Avenue, Cardiff, California (hereinafter "the PROPERTY") and which is described as follows: 1 See Exhibit A attached hereto and incorporated by reference herein. B. BENEFICIARIES are the owners of real property which is commonly known as 1370 and 1372 Summit Avenue, Cardiff, California, (in that Stephen R. Freyling is the record owner of vested title to such real property and Heidi A. Keller, holds a non-vested interest therein as Mr. Freyling's spouse), and which is described as follows: See Exhibit B attached hereto and incorporated by reference herein. C. In consideration of the approval of Building Pennits 03-0132,03-2006,04-0329, and 04-0470 by CITY, OWNERS hereby covenant and agree for the benefit of BENEFICIARIES and CITY to comply with the approved permit and the regulations of Municipal Code Chapter 30.16 (Setbacks) in that the building pennit plan sets indicate a sideyard setback on the south side of the PROPERTY adjacent to an easement as five feet, i.e., the sideyard setback applicable to an interior lot (the subject easement is more particularly described on Exhibit A, attached hereto and incorporated by reference herein, as Parcel 2 of the PROPERTY). In order to be treated as an interior lot, and thereby enjoy a five-foot sideyard setback adjacent to the easement, the PROPERTY enjoying the setback must not have any rights of ingress and egress whatsoever over the adjacent easement. Therefore, in order to comply with the five-foot setback regulation, OWNERS hereby relinquish all rights to use of the subject easement to the south ofthe PROPERTY, as to which the PROPERTY is the dominant tenement and the property commonly known as 1370 and 1372 Summit Avenue is the servient tenement (hereinafter ''THE SERVIENT TENEMENT"), for so long as this Amended Covenant shall remain in effect (see, Paragraph D, below), except that the owners or occupants of the PROPERTY shall have the right to reasonable non-vehicular access/entry upon the easement for the limited purpose of 2 maintaining and repairing the south side of any fence/wall constructed on and along the southern boundary of the PROPERTY. D. This Amended Covenant shall remain in full force and effect until either: (1) termination or modification by a writing among CITY, the owner(s) ofthe PROPERTY, and the owner(s) of the SERVIENT TENEMENT; or (2) treating the PROPERTY as a "comer lot", any building which constitutes an enlargement, extension or expansion upon any permissible structural non-conformity of the former single-story duplex located on the PROPERTY (in relation to its setback from the southern lot line of the PROPERTY) which was constructed using the sideyard setback from the southern lot line of the PROPERTY applicable under the Municipal Code to an "interior lot," as opposed to the sideyard setback from the southern lot line applicable under the Municipal Code to a "comer lot," is removed or reconstructed such that it complies with the sideyard setback from the southern lot line of the PROPERTY applicable under the Municipal Code to a "comer lot." [The location of the former single story duplex located on the PROPERTY, in relation to the residence constructed under the building permits referred to in Paragraph C, above, is shown on the Site Plan and Plot Plan documents filed with and approved by the City in connection with said building permits. See, without limitation, Site Plan, received by City April 1, 2003, re Permit No. 03-0132; Plot Plan, dated September 24,2003, re Permit Nos. 03-2006 and 04-0329.] E. This Amended Covenant shall run with the land and be binding upon and inure to the benefit of future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties. F. OWNERS' duties and obligations under this Amended Covenant are a lien upon the 3 PROPERTY. Upon notice and an opportunity to respond CITY may add to the property tax bill of the PROPERTY any past due financial obligation owing to CITY by way of this Amended Covenant. G. Failure of the OWNERS to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant and/or consent to the filing by CITY and/or BENEFICIARIES of legal proceedings to enforce this Amended Covenant, including an action for damages and/or injunctive relief, subject to the requirements of Paragraph I, below. Enforcement of this Amended Covenant shall not include revocation of any of the above-listed building permits. H. CITY hereby assigns to BENEFICIARIES the non-exclusive right to enforce this Amended Covenant against OWNERS. By action of the City Council, CITY may assign to a person or persons impacted by the performance of this Amended Covenant, in addition to BENEFICIARIES, the right to enforce this Amended Covenant against OWNERS. I. If the owners of the SERVIENT TENEMENT and/or the CITY believe the owners/occupants of the PROPERTY (or any of their agents, employees, or anyone acting on their behalf) have used or are using the easement in violation of this Amended Covenant, they shall take reasonable steps to notify the owner and occupant (if different from the owner) of the PROPERTY, detailing the alleged violation, before taking any further action. If the claim of violation cannot be resolved amicably, the parties will first attempt to resolve the dispute through mediation before resorting to formal proceedings or court action. Mediation fees, if any, shall be divided equally between/among the parties involved. If any party commences a formal proceeding or action without first attempting to resolve the matter through mediation, or refuses 4 to mediate after a request has been made, then that party shall not be entitled to recover attorney's fees and expenses, even if such fees and expenses would otherwise be available to that party in any such proceeding or action. 1. Subject to Paragraph I, above, if any party is required to incur expenses to enforce or obtain interpretation of the provisions of this Amended Covenant, the prevailing party shall be entitled to full reimbursement from the non-prevailing party(ies) of all such expenses, including reasonable attorney's fees and the recovery of all expenses associated therewith. ACCEPTED AND AGREED OWNERS Dated: \2,-e~- ~ ~~ Mark D. Bobo Dated: \6 -Ol' - ~eJ:f:) J(~~.~ Kristy R. Bobo BENEFICIARIES ~~~ \C - \' '--\. \\......"\ Stephen R. Freyling Dated: \"t,-..o,+- U)o ~ Dated:~. ~ M~r:;- ~~ '--~ Heidi A. JStffer (Notarization of OWNERS' and BENEFICIARIES' signatures is attached.) 5 CITY OF ENCINITAS Dated: pIN~ STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) On]).!'. 8.J.h,g.Oo5"', beforeme,~.s , a Notary Public in and for said County and State, personally appeared Mark D. Bobo, personally let9....!fl te I'fte,@ proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal ~D f~ -- O"FFK>AL SEAl. u 1 .' ...... . ~ L. MONTES ~ . .. . NOTARY PUBllC.CAlIFORNIA ~ cr COMM. NO. 1482968 _ . SAN DIEGO COUNTY . MY COMM. EXP. APRil 13. 2008 STATE OF CALIFORNIA ) ) ) COUNTY OF SAN DIEGO On~. 8~~, before me, .. , a Notary Public in and for said County and State, personally appeared Kristy . Bobo, personally Kltovv.l te Me, ~proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal ~u r - - - OFFICIAL siAL - 1 _@'L.MONTES ~ NOTARY PUBUC.CAUFOANJA ~ It! COMM. NO. 1482968 _ . SAN DIEGO COUNTY . MY COMM. EXP. APRIL 13. 2008 6 .' STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) On J:tc.. IJ 2DOS, before me, XYE" p"fWrJ (JAT6 , a Notary Public in and for said County and State, personally appeared Stephen R. Freyling, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) On '"]}c.. 7 20fl5, before me, J;yt f)"w"; (l4r~ , a Notary Public in and for said County and State, personally appeared Heidi A. Keller, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. ~ Of~SEAl - -1 ~ . JOVE DAWN CA TO . NOTARY PUBlIC-CAlIFOANIA j ~ g>MM.~.~ _ . MY CO't.~EXP. JAN. ~~J tu~ t!.1' WITNESS my hand and official seal f~- ---_h -- .. . OFFICIAL SEAL ~ JOVE DAWN CA TO 1 NOTARY PUBlIC-CALIFORNIA $ COMM. NO. l.4tlO695 _ . SAN DIEGO COUNTY l_ _ M~ C~MM. EXP. JAN. 6. 2008 J ~~-'I(1~ 021/ Amd6.Cov.fin 7 PARCEL 2: AN EASEMENT FOR INGRESS AND EGRESS AND PUBLIC UTILITY PURPOSES OVER A STRIP OF LAND 16.50 FEET IN WIDTH LYING WITHIN LOT 1 IN SECTION- 22, TOWNSHIP 13 SOUTH, RANGE 4 WEST, . SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO,. STATE OF CALIFORNIA, ACCORDING TO 9FFICIAL PLAT THEREOF. THE NORTHWESTERLY LINE OF SAID STRIP BEING DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF PARCEL 1 HEREINABOVE DESCRIBED, BEING A POINT ON THE NORTHWESTERLY LINE OF LAND DESCRIBED-IN DEED TO PETER D. CARPENTER, RECORDED NOVEMBER 27, 1967 AS FILE/PAGE NO..,185440 OF OFFICIAL RECORDS; THENCE ALONG SAID NORTHWESTERLY LINE, SOUTH 660 48' 00" WEST, 15.00 FEET TO THE MOST WESTERLY CORNER OF SAID CARPENTER'S LAND AND BEING THE TRUE POINT OF BEGINNING; THENCE ALONG THE NORTHWESTERLY LINE OF SAID CARPENTER'S LAND NORTH 660 48' 00" EAST, 119.12 FEET TO THE MOST NORTHERLY' CORNER OF SAID LAND. SAID EASEMENT TO TER~INATE NORTHEASTERLY IN THE EASTERLY BOUNDARY OF SAID CARPENTER'S LAND. PAGJ:: 2 OF 2 In EXHIBIT B THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE WESTERLY PROLONGATION OF THE NORTH BOUNDARY OF LINE OF CARDIFF VILLA TERRACE, ACCORDING TO MAP THEREOF NO. 1469, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 10, 1912, WITH THE NORTHEASTERLY LINE OF COUNTY HIGHWAY ROUTE 1, DNISION 1, THENCE NORTH 31028' 00" WEST ALONG SAID HIGHWAY LINE, 213.03 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1275.82 FEET AND A CENTRAL ANGLE OF 080 01' 00"; THENCE NORTHWESTERLY ALONG SAID CURVE, 178.49 FEET; THENCE TANGENT TO SAID CURVE NORTH 230 27' 00" WEST, 1237.98 FEET TO A POINT; THENCE NORTH 660 48' 00" EAST 242.92 FEET; THENCE CONTINUING NORTH 660 48' 00" EAST, 248.06 FEET; THENCE SOUTH 000 23' 00" WEST, 18.61 FEET TO THE NORTHERLY END OF A CURVE, CONCAVE TO THE NORTHEAST, AND WHOSE CENTER BEARS NORTH 83003' 14" EAST, 2035.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE, 54.95 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHEASTERLY ALONG SAID CURVE, 77.49 FEET TO THE MOST NORTHERLY CORNER OF THE LAND DESCRIBED IN DEED TO MICHAEL 1. VARY, ET UX, RECORDED APRIL 5, 1955 AS DOCUMENT NO. 44920 OF OFFICIAL RECORDS; THENCE ALONG THE NORTHWESTERLY LINE OF SAID LAND, SOUTH 66048' 00" WEST, 100.58 FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO HAROLD R. HONESS, ET UX, RECORDED MARCH 24, 1960 AS DOCUMENT NO. 60305; THENCE ALONG THE NORTHEASTERLY LINE OF SAID LAND AND THE NORTHWESTERLY PROLONGATION THEREOF, NORTH 230 27' 00" WEST, 75.00 FEET TO THE SOUTHEASTERLY LINE OF THE LAND DESCRIBED IN DEED TO ALBERT SPRINGER, ET UX, RECORDED APRIL 21, 1961 AS DOCUMENT NO. 69344 OF OFFICIAL RECORDS; THENCE ALONG SAID SOUTHEASTERLY LINE, NORTH 660 48' 00" EAST, 15.00 FEET TO THE MOST EASTERLY CORNER OF SAID LAND; THENCE NORTH 66043' 00" EAST, 104.22 FEET TO THE TRUE POINT OF BEGINNING.